A century ago, the Florida Supreme Court, following Illinois law,
announced that it would reverse certain issues only if the appellant demonstrated that the trial court had committed a "gross abuse of
discretion." Yet, on other issues, the court remained willing to
exercise its power to reverse trial courts based on a mere abuse of
discretion. Over time, it became clear that the legal community needed a
workable definition of "abuse of discretion" to help apply
these rules. This need was heightened by the creation of the district
courts of appeal in 1957, when suddenly three more appellate courts were
working with their own concepts of abuse of discretion.

In 1980, the Florida Supreme Court finally created that definition
in Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980). Unfortunately,
the court did not reject, or even discuss, gross abuse of discretion or
any other heightened form of abuse. However, the Supreme Court has never
thereafter discussed or relied on the concept of a gross abuse of
discretion.

The definition of abuse of discretion in Canakaris established the
"no reasonable person" standard. After Canakaris, a more
deferential standard of review, such as gross abuse of discretion, was
unworkable because the legitimacy of trial court rulings could never be
supported by a standard lower than the "no reasonable person"
standard.

The case law in the last 20 years demonstrates the inability of
good judges to apply the gross abuse of discretion standard in a
post-Canakaris world. The courts have attempted various one- and
two-tiered approaches to the standard, none of which is entirely
satisfactory. Currently, the district courts of appeal seem to have the
option of applying either a gross abuse of discretion or an abuse of
discretion standard when reviewing a trial court's discretionary
rulings, a situation which creates the appearance of inconsistency and
unfairness.

In order to rectify this situation, Florida should once again
follow the lead of Illinois and reject all standards of review that are
more deferential than "abuse of discretion." Florida should
embrace a single abuse of discretion standard, recognizing that this
standard of review is tempered by the nature of the issue on appeal.
Some issues involve public policies or established case law that
effectively narrow the trial court's options and reduce the
appellate court's deference to that trial court's decision.
Other issues involve matters that are very difficult to second-guess on
review or have no outcome that is preferred by policy or case law. In
these cases, abuse of discretion results in great deference to the trial
court. Thus, it is the underlying policies associated with the specific
legal issues, and not the verbiage of the standard of review, that
apportions power over the finality of judgments between trial courts and
appellate courts. The district courts should certify the application of
the "gross abuse of discretion" standard in this
post-Canakaris world to the Florida Supreme Court in hopes that it will
provide the needed guidance.

Historical Development of Gross Abuse of Discretion Standard in
Florida

The term "gross abuse" made one of its first appearances
in Russ v. Gilbert, 19 Fla. 54 (Fla. 1882). In support of its
application of a gross abuse of discretion standard when reviewing an
order refusing to open a default, the Russ court cited a series of
Illinois cases, including Greenleaf v. Roe, 17 Ill. 474 (Ill. 1856),
which employed a gross abuse standard. (1)

The next major step in the evolution of the gross abuse standard
occurred in Benedict v. W.T. Hadlow Co., 42 So. 239 (Fla. 1906), and
Coggin v. Barfield, 8 So. 2d 9 (Fla. 1942). Relying on Russ, both cases
applied the gross abuse standard when reviewing the denial of a motion
to set aside a default judgment. Benedict and Coggin are important
because they are relied on by North Shore Hospital, Inc. v. Barber, 143
So. 2d 849 (Fla. 1962), in which the Supreme Court held that a showing
of gross abuse of discretion is necessary on appeal to justify reversal
of the trial court's ruling on a motion to vacate a default
judgment. North Shore appears to be the main source of confusion as to
the applicable standard and has created debate not only among the
districts, but also within them, because some courts have chosen to find
a dual standard in North Shore. The courts in favor of this dual
standard note that North Shore involved an order of the trial court
granting a motion to vacate a default, rather than one refusing to do
so.

Interpreting North Shore, the Second District Court of Appeal
adopted a two-pronged standard regarding review of the granting or
denial of a motion to vacate a default. In Marshall Davis, Inc. v.
Incapco, Inc., 552 So. 2d 206 (Fla. 2d DCA 1990), default judgment was
entered against the defendant and the circuit court denied the
defendant's motion to set aside the default. The Second District
found an abuse of discretion and reversed the circuit court's
refusal to set aside the default, stating, "Although a party must
establish a gross abuse of the trial court's discretion to justify
an appellate court's reversal of a ruling on a motion to set aside
a default, a lesser showing is required to reverse a denial of a motion
to set aside a default than to reverse a granting of such motion."
(2) Although this language appears to create varying degrees of gross
abuse, it has been interpreted as creating a standard in which abuse of
discretion is used when reversing a denial of a motion to set aside
default, while gross abuse of discretion is used to reverse the granting
of such a motion.

The Fourth District Court of Appeal has both explicitly adopted and
rejected the dual standard found in the Second District. In 1999, the
Fourth District decided George v. Radcliffe, 753 So. 2d 573 (Fla. 4th
DCA 1999), in which the issue was the denial of a motion to vacate a
default. In George, the court, citing North Shore, affirmed based on a
finding of no gross abuse of discretion. (3) However, on motion for
rehearing, the court took a closer look at the standard of review and
decided that the correct standard was abuse of discretion (not gross
abuse). The court declined a rehearing because the application of the
abuse standard would not have changed the case's outcome. (4)

In deciding the motion for rehearing, the Fourth District suggested
that a dual standard derived from North Shore would be incorrect because
North Shore relied on Benedict, in which the trial court had denied a
motion to vacate and the standard of review applied was gross abuse. (5)
The court conceded that the correct standard that should have been
employed in its review was abuse and not gross abuse. This was based on
the court's determination that a greater showing is needed for
reversing an order granting motion to vacate, not because of North
Shore, but rather to comply with Florida's liberal policy in favor
of vacating defaults so that controversies can be decided on the merits.
(6)

In Ray v. Thomson-Kernaghan & Co., 761 So. 2d 1197 (Fla. 4th
DCA 2000), the Fourth District was again presented with an appeal of a
denial of a motion to vacate a default. In its per curiam opinion, the
court affirmed, finding no abuse of discretion. However, in a separate
concurring opinion, Judge Farmer opined on the differences between gross
abuse and abuse. Judge Farmer claimed that the dual standard established
in the Second District Court of Appeal arose from a misreading of North
Shore. (7) Judge Farmer also noted that he disagreed with the two-tiered
standard of review applied in George. (8) Judge Farmer argued that North
Shore was based not on the nature of the trial court's decision,
but on motions to vacate as a whole, regardless of their outcome. (9)
Because he distinguished abuse of discretion from gross abuse of
discretion by arguing that the policy of liberality applies to trial
court judges and not to appellate courts, and that appellate courts must
review based on the standard of gross abuse of discretion, Judge Farmer
ultimately concluded: "We should not disturb a trial judge's
decision, whether it be to grant or deny relief, unless there is an
abuse of discretion and it is marked and extreme." (10)

Perhaps when there was hope that the Fourth District was on the
verge of clarifying which standard of review to apply regarding motions
to vacate a default, the decision in Lloyd's Underwriter's at
London v. Ruby, Inc., 801 So. 2d 138 (Fla. 4th DCA 2001), revived the
perplexing dual standard. In Lloyd's, the court again acknowledged
that a greater standard, requiring a finding of gross abuse of
discretion, was needed when reviewing an order granting a motion to set
aside a default, while the lesser abuse of discretion standard was
required when reviewing a denial of a motion to set aside a default.

There seems to be less debate in the Third, First, and Fifth
districts. Contrary to the Second and Fourth districts, the Third
District seems to have consistently applied only the gross abuse of
discretion standard when reviewing an order on a motion to set aside
default, regardless of whether the order was granted or denied. (11) The
same consistency can be found in both the First and Fifth districts,
most likely due to a strict adherence to North Shore. (12)

Canakaris v. Canakaris: A Definition is Born

In 1980, the Florida Supreme Court decided Canakaris v. Canakaris,
which should be read to clarify, once and for all, what Justice Anstead
has considered case law in a "hopeless state of confusion."
(13) In Canakaris, the Supreme Court stated:

In reviewing a true discretionary act, the appellate court must
fully recognize the superior vantage point of the trial judge and should
apply the "reasonableness" test to determine whether the trial
judge abused his discretion. If reasonable men could differ as to the
propriety of the action taken by the trial court, then the action is not
unreasonable and there can be no finding of an abuse of discretion. The
discretionary ruling of the trial judge should be disturbed only when
his decision fails to satisfy this test of reasonableness. (14)

Since Canakaris, the Florida Supreme Court has consistently applied
the abuse of discretion standard based on the reasonableness test to
appellate review cases of various natures. (15)

Unlike the Florida Supreme Court, the district courts of appeal
appear to have interpreted Canakaris as affording the option to impose
either the abuse or gross abuse standard. For example, both the Third
and Fourth district courts of appeal have applied the gross abuse
standard for review of venue issues. (16) Yet, throughout the districts,
the abuse of discretion standard has been applied to a variety of cases
ranging from motions granting a continuance to orders to pay
attorneys' fees to review of a denial of a motion to bifurcate issues. (17)

Struggling to Make Sense of It All

The struggle to make sense of the complicated case law regarding
the abuse or gross abuse standard is not a new one. In fact, it goes
back at least two decades. In 1981, Justice

Anstead noted:

In the first instance trial courts are advised that they should
follow a policy of liberality in exercising their discretion to vacate
default judgments. On the other hand appellate courts are advised that
they must find a gross abuse of discretion by the trial court before
disturbing its ruling on a motion to vacate. Both of these principles
are set out in the case of North Shore Hospital, Inc. v. Barber, 143 So.
2d 849 (Fla. 1962), the case most frequently cited in subsequent
appellate opinions on this subject. Most appellate courts are naturally
reluctant to announce that a trial court has "grossly" abused
its discretion even though it may be clear that the trial court did not
apply a policy of "liberality" in considering the motion to
vacate. Hence, there is a great deal of straining apparent in appellate
opinions holding that the trial court erred in refusing to set aside a
default. (18)

We use the gross abuse of discretion standard because that is the
standard the Florida Supreme Court adopted in North Shore Hospital Inc.
v. Barber, 143 So. 2d 849 (Fla. 1962). It is, however, unclear to us the
difference between 'gross abuse of discretion' and 'abuse
of discretion,' although some courts have recognized, though not
defined, a difference.

The court went on to state:

In Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980), the supreme
court defined abuse of discretion.... [I]if an abuse of discretion is an
action by the trial court that no reasonable judge would take, what then
is a "gross" abuse of discretion? Is it an action that only an
extremely unreasonable judge would take? We suspect that the one and
only standard is abuse of discretion, and that the supreme court's
use of the word "gross" was merely surplusage.

A recent Second District case articulated the confusion regarding
the difference between gross abuse and abuse when the court stated,
"The troublesome nature of our review here is the admittedly high
'gross abuse of discretion' standard.... However, we have no
definition of what a 'gross' abuse of discretion includes or
how it differs from an abuse of discretion. We can only assume that it
is more egregious than a typical abuse of discretion." (19)

The most in-depth attempt to probe the confusion of the abuse and
gross abuse standards appears to be found in Ray, (20) briefly discussed
above. Judge Farmer, concurring specially, began his analysis by stating
humorously: "The issue in this appeal is that old friend of the
appellate courts in Florida--whether a trial judge grossly abused
discretion in vacating or refusing to vacate a default." (21) Judge
Farmer disagreed that there should be any form of "greater
circumspection" for any motion to vacate default cases, and
therefore he explicitly disagreed with the two-tiered standard applied
by the Second District Court of Appeal and by his own court in George.
(22) Judge Farmer believed that the liberality principle and the gross
abuse standard could be reconciled without adopting multiple standards
of review. He concluded:

The liberality principle is directed to trial judges as a rule
guiding their discretion, not to appellate judges as a standard of
review. It directs the trial judge to grant the relief when the
circumstances do not point clearly in one direction and the issue is in
doubt. After the trial judge makes the decision, however, and the issue
is raised on appeal, a court of appeal is directed not to apply the
liberality principle itself (for the trial judge has already done that
or failed to do so) but instead to review the decision granting or
denying the relief from the standpoint of gross abuse of discretion.
(23)

Other States' Approaches to Clarification

In 1999, the Supreme Court of Colorado noted that a survey of
Colorado case law revealed that the abuse of discretion standard had
been stated several different ways in the context of reviewing a trial
court's discretionary ruling. (24) In acknowledging that the use of
"such modifiers results in confusion," the court held a single
standard of review existed and stated:

The use of these modifiers creates the appearance of inconsistency
and unfairness. This is particularly true here, where the specially
concurring judge voted to affirm the convictions because she found no
gross abuse of discretion, yet she also found that the trial
court's ruling was "precipitously close to requiring
reversal." [citation omitted] This raises the unfortunate
implication that this judge might have reached a different result by
applying an unmodified abuse of discretion standard. Therefore, we hold
that the phrases "abuse of discretion," and "clear abuse
of discretion," and "gross abuse of discretion" contained
in our prior case law all have the same meaning. (25)

In a similar attempt to clarify its case law, the Pennsylvania
Supreme Court held that there is no distinction between a gross abuse of
discretion and an abuse of discretion. (26) The court stated,

Whether the standard is articulated as an "abuse of
discretion" or as a "gross abuse of discretion," the test
remains the same: whether the trial court's conclusions are
unreasonable as shown by the evidence of record. Thus, we deem the use
of the verbiage "gross" to be mere surplusage and we will
henceforth articulate the standard as an "abuse of
discretion." (27)

Perhaps the most important jurisdiction to examine would be
Illinois, given that Florida seems to have relied on Illinois' use
of a gross abuse of discretion standard in Greenleaf to justify applying
a gross abuse of discretion to Florida cases. Interestingly, Illinois
cases prior to Greenleaf do not apply a gross abuse of discretion
standard, while most later Illinois cases applying the gross abuse
standard can be traced back to Greenleaf. (28)

In Dunlap v. Gregory, 14 Ill. App. 601 (Ill. App. 1884), the
Illinois appellate court made a significant clarification regarding the
standard of review in Illinois. The court stated that despite the fact
that stronger qualifying terms were used in cases such as Greenleaf, the
settled rule in Illinois was that motions to set aide defaults were
reviewed for an abuse of discretion. The court reaffirmed that the only
standard of review was that of abuse of discretion, regardless of what
adjectives were applied in front of the term "abuse" for
emphasis.

If this language is taken at face value, then there never was a
gross abuse of discretion standard in Illinois. This holding may have
important implications for the application of a gross abuse of
discretion standard in Florida. As mentioned previously, Russ relied on
Greenleaf for its use of a gross abuse standard. Also, the two cases
relied on by North Shore for its application of the gross abuse of
discretion standard, Coggin and Benedict, both relied on Russ as well.
If there never was a gross abuse of discretion standard in Illinois,
then the establishment of the gross abuse of discretion standard in
Florida based on the Illinois precedent may be flawed.

Elimination of Gross Abuse Standard

A review of the history of the abuse and gross abuse of discretion
case law demonstrates just how convoluted this topic has become since
its inception. The district courts have not been able to establish a
workable test to explain when the use of one standard should be applied
over the other. Therefore, some district courts have chosen to interpret
the law as creating a two-tiered standard, applying gross abuse in
certain circumstances and abuse of discretion in others, while other
courts have followed a stricter adherence to one standard or the other.
As a result, there is confusion within the district courts as to the
applicable standard of review.

The lack of consensus as to which standard to apply and the
existence of a dual standard in some courts create the appearance of
inconsistency and unfairness. (29) Certain legal issues, such as setting
aside defaults, involve public policies that favor or encourage one
judicial ruling over another. In such cases, gross abuse of discretion
should not be used to review one outcome and abuse of discretion
another. The truth is that it is likely easier to abuse discretion by a
ruling that is contrary to the outcome favored by the public policies.
This may well be all that the Florida Supreme Court and the Second
District intended to explain in North Shore, Garcia, and Marshall Davis.

Despite its use of gross abuse in North Shore, the Florida Supreme
Court explained definitively the meaning of the abuse of discretion
standard in Canakaris and since that date has applied only an abuse of
discretion standard of review. As a result of the Canakaris "no
reasonable person" definition, it is now difficult or impossible to
provide a useful definition of "gross abuse of discretion."

The district courts should recognize Canakaris as clarifying that
the standard of review is abuse of discretion and the term
"gross" in North Shore was mere surplusage. The establishment
of abuse of discretion as the standard of review will help eliminate the
appearance of any inconsistency and unfairness that might exist as a
result of the application of a dual standard. Explicit acceptance of the
abuse of discretion standard as the only proper standard of review in
discretionary rulings of trial courts will also better comport with
public policies that favor or encourage one judicial ruling over another
and ease the frustrations of appellate judges who currently have the
burden of trying to decipher and apply the correct standard of review.
Furthermore, if the abuse of discretion standard is applied consistently
to similar situations, both practitioners and judges will have a better
understanding of its underlying meaning.

Laura Whitmore is a staff attorney for Judge Chris Altenbernd of
Florida's Second District Court of Appeal. Ms. Whitmore received a
B.A. in 2001 from Trinity University in San Antonio, Texas, and a J.D.
degree in 2004 from Indiana University School of Law.

This column is submitted on behalf of the Appellate Practice
Section, John G. Crabtree, chair, and Jacqueline E. Shapiro, editor.

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